Elena Kagan Nominated to the United States Supreme Court

President Obama has nominated Elena Kagan to the United States Supreme Court to take the place of the retiring Justice John Paul Stevens. If she is confirmed, Ms. Kagan will be only the fourth woman to serve in the Court’s history.

The authors of the Constitution established the Supreme Court in Section 1 of Article III of the Constitution, which reads simply:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 1

In 1789, the First Congress passed the Judiciary Act of 1789 which established the system of circuit and district courts making up the federal judicial system still in use today. The Constitution was silent on the number of justices to serve on the Supreme Court, but the Judiciary Act set the number at six. The number has been increased and decreased on multiple occasions, finally settling at nine in 1869. In 1937, President Franklin D. Roosevelt, after several rulings by the Court striking down parts of his New Deal legislation, tried to increase the size of the Court, an attempt known as “packing” the Court, in order to add justices favorable to his position. 2 Roosevelt’s plan was discarded after the Court ruled in his favor on several cases.

In contrast to the qualifications for the president 3 and members of the House of Representatives 4 and the Senate 5, the Constitution lists no requirements at all to serve on the Supreme Court. In practice, however, any person nominated by the president must obtain the consent of the Senate to serve, and it is unlikely anyone without a law degree and impressive legal experience would make it on to the Court.

Who are the justices? I include Ms. Kagan in these numbers since she appears likely to be confirmed. They are all graduates of Ivy League law schools. Six are from New York and New Jersey, two are from California and one is from Georgia. There are six Catholic justices and three Jewish justices. Six were appointed by Republican presidents and three by Democratic presidents. Seven are married, including all the men, and two are single, Ms. Kagan and Justice Sotomayor. The longest serving justice is Antonin Scalia, who took his seat in September, 1986. The eldest is Ruth Bader Ginsberg and the youngest is Elena Kagan.

For the first time in history, if Ms. Kagan is approved, there will be three women serving on the Court at the same time. Although that number may seem small compared to the percentage of women in the general population, it helps to remember it took nearly 200 years just to get the first woman, former Justice Sandra Day O’Connor, on the Court at all, and then another 12 years to get the second, Justice Ginsberg.

If you are interested in learning more about — or planning a visit to — the United States Supreme Court, you may want to visit the Court’s website at http://www.supremecourt.gov/.